911 F.

2d 508

John T. TUKES, Petitioner-Appellant,

v.
Richard L. DUGGER, Secretary, Department of Corrections,
Defendant-Appellee.
No. 88-5685.

United States Court of Appeals,

Eleventh Circuit.
Sept. 7, 1990.

Michael J. Doddo, Ft. Lauderdale, Fla. (Court-appointed), for petitionerappellant.

Richard A. Polin, Asst. Atty. Gen., Miami, Fla., for defendant-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before KRAVITCH, Circuit Judge, RONEY* , Senior Circuit Judge, and
ALDISERT**, Senior Circuit Judge.
KRAVITCH, Circuit Judge:

John Tukes appeals the denial of the writ of habeas corpus by the district court,
which adopted the report and recommendation of the magistrate. Arguing that
the fruits of a search of his home should be suppressed, Tukes contends that his
consent to the search was coerced and involuntary and obtained in violation of
his right to have counsel present. He further argues that the jury that convicted
him was selected by the prosecutor in an intentionally discriminatory manner.
We conclude, however, that Tukes's claims fail on the merits; therefore, we
affirm the district court's denial of relief.

BACKGROUND
2

While investigating a double homicide, police were told that Tukes had been
seen recently at the scene of the shooting. When Detectives Venturi, Remy, and

Barraga1 went to Tukes's house, a woman answered the door and, in response to
questioning, said that Tukes was at home. Tukes came to the door and agreed
to talk to the police, but said he wanted to straighten out some matters first. The
police asked if Tukes had a gun, and when he admitted that he did, the police
asked Tukes if he would turn it over to them. He agreed. The firearm was not
the murder weapon.
3

The police waited inside the house while Tukes went into his bedroom and
sorted through his papers. There were three women present, and Tukes gave
some documents, apparently deeds or titles, to one of the women, instructing
her to sell the property and saying, "I am going to have to get lawyers."
Detective Venturi asked Tukes why he wanted a lawyer, and informed him that
he was not under arrest, that the police would like him "to voluntarily come
[sic] downtown." Tukes acquiesced, but before he left, he consented to a search
of his garage and car. He was driven in a police car to the police station where
Detective Parmenter proceeded to interview him in an interrogation room
measuring six by eight feet. Parmenter testified that the other investigators did
not inform him of Tukes's statement at his home that he was "going to have to
get lawyers."

Parmenter read Tukes the standard police department Miranda form because
Tukes told the detective that he could not read or write. Although Tukes stated
that he understood his rights, he refused to sign the waiver of rights form. This
exchange was not tape recorded. Tukes then provided an exculpatory statement
from which he did not deviate despite the detective's continued interrogation for
one and a half to two hours. At the end of that session, Tukes agreed to initial a
consent form permitting the police to search his house for evidence of the
crime.2

Although Parmenter testified that Tukes was free to go at any time, Tukes was
not told he was free to go, nor was he free to wander around the police station
at pleasure. At deposition, Parmenter testified that after Tukes gave the consent
he said he wanted to leave the police station. Parmenter, rather than permitting
Tukes to go, asked him if he had left anything out of his statement, and then
proceeded to reinterrogate Tukes. At the suppression hearing, however,
Parmenter denied so testifying at deposition, and denied the substance of his
prior sworn testimony.

Tukes remained at the police station and was moved to another interrogation
room where he was left alone for an hour and a half. Meanwhile, police
searched Tukes's house and discovered ammunition and a pistol, wrapped in a
towel splattered with what appeared to be blood. While forensic technicians

examined the gun and towel, Tukes remained at the police station. When he
said he was hungry, police officers brought food into the station for Tukes.
Finally, in the late afternoon, having been at the police station all day, Tukes
was formally placed under arrest and told he was being charged with murder.
He invoked his right to counsel.
7

Tukes was indicted on two counts of first degree murder, one count of armed
robbery, and one count of possession of a firearm during the commission of a
felony. The state trial court denied his motion to suppress the evidence of the
ammunition, pistol, and towel, finding that the "statements were freely and
voluntarily given, freely and voluntarily went to the station [sic], that the
waiver to search form was signed freely and voluntarily." The court reached no
express legal conclusion about whether Tukes's initial statement that he was
going to have to get lawyers and Venturi's discouraging response implicated
Tukes's right to counsel once he was in custody.

Tukes was convicted on all four counts, and he appealed his conviction to the
Third District Court of Appeal, raising the same three issues he urges to this
court. The state appellate court affirmed his conviction without opinion. Tukes
v. State, 507 So.2d 1110 (Fla.Dist.Ct.App.1987).3

9
STONE
V. POWELL AND FOURTH AMENDMENT CLAIMS ON
COLLATERAL REVIEW
10

The state argues that this court need not and cannot reach the merits of Tukes's
claims relating to the suppression of the evidence because they are fourth
amendment claims, which are barred from collateral review by the federal
courts if fully and fairly litigated in the state courts. See Stone v. Powell, 428
U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also Agee v. White, 809
F.2d 1487 (11th Cir.1987); Morgan v. Estelle, 588 F.2d 934 (5th Cir.1979). 4

11

First, we must decide whether Tukes's claims, as they relate to the validity of
his consent and his right to a lawyer, are fourth amendment claims. Tukes
seeks the same remedy for both claims: the suppression of evidence obtained
by the police during the consent search of Tukes's house. If Tukes's consent
was invalid, the consent search was invalid. Similarly, if the consent was
obtained by police after Tukes invoked his right to counsel, the consent and the
search conducted under it were invalid because invocation of the right to
counsel should cut off further interrogation. In either case, Tukes seeks the
same remedy that he would have sought had the police obtained evidence with
a defective warrant or no warrant at all. If these claims allege a violation of the
fourth amendment, we may not consider them on federal habeas corpus review

unless they were not fully and fairly litigated in the state courts.
Coerced Consent
12

The Supreme Court has identified the fourth and fourteenth amendments as the
bulwarks against admission of evidence obtained by the state through coerced
consent to a search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 221-22,
228, 242-43, 93 S.Ct. 2041, 2043, 2045, 2048, 2055-56, 36 L.Ed.2d 854
(1973). Although in this case the fourth amendment concern is raised by way of
an objection to the manner in which the police obtained the consent,
nevertheless the objection remains one premised on the fourth amendment, i.e.,
that the search was unreasonable because it was based on consent that was not
knowingly and voluntarily granted.

13

Significantly, this is not a case where the admission of a confession itself is the
source of objection. A coerced confession is unreliable. Stone v. Powell, 428
U.S. at 496-97, 96 S.Ct. at 3053 ("A confession produced after intimidating or
coercive interrogation is inherently dubious. If a suspect's will has been
overborne, a cloud hangs over his custodial admissions; the exclusion of such
statements is based essentially on their lack of reliability.") (Burger, C.J.,
concurring). Instead, here Tukes seeks the suppression of the fruits of a search.
As the Court noted in Stone v. Powell, "the physical evidence sought to be
excluded is typically reliable and often the most probative information bearing
on the guilt or innocence of the defendant." 428 U.S. at 490, 96 S.Ct. at 3050.
"The primary justification," the Court stated, "for the exclusionary rule then is
the deterrence of police conduct that violates Fourth Amendment rights." 428
U.S. at 486, 96 S.Ct. at 3048. 5

14

The evidence obtained is reliable, and the deterrent effect of suppressing the
evidence, according to the Supreme Court, is "outweighed by the
acknowledged costs to other values vital to a rational system of criminal
justice." 428 U.S. at 494, 96 S.Ct. at 3052. In this case, where the complaint of
coercion goes to the consent under which a search was made by police, we
conclude that the doctrine of Stone v. Powell applies to bar consideration of the
claim in federal habeas if the issue has been fully and fairly litigated in the state
courts.

15

Controlling precedent of this circuit and its predecessor supports this result. In
one instance, a habeas petitioner attempted to raise a claim, similar to that now
urged by Tukes, that his consent to a search was invalid because obtained while
he was in a coercive custodial environment without the benefit of Miranda
warnings. This court held, on the strength of Stone v. Powell, that the "matter

may not be reexamined" where the state courts gave the claim a "full, fair
hearing and consideration to this question." Hedden v. Wainwright, 558 F.2d
784, 786 (5th Cir.1977).
16
Consent
Obtained in Violation of Tukes's Right to Have All Questioning Stop Once
the Right to Counsel Was Invoked
17

Tukes also contends that his consent was invalid because it was obtained after
the police should have ceased questioning him because he had invoked his
right to counsel. Arguing that the evidence obtained in the search was the fruit
of the poisonous tree of his uncounseled consent, Tukes seeks to suppress the
evidence obtained in the search. In effect, Tukes claims that the search was
unconstitutional because the consent was invalid as it would not have been
obtained had the police honored Tukes's sixth amendment right.

18

Federal habeas corpus review of this claim is also governed by Stone v. Powell.
The Supreme Court struck a balance between the exclusionary rule as a
prophylactic device to protect fourth amendment values and the reliability and
fairness of criminal prosecutions; the reliability of the evidence obtained by the
search is not made suspect by the means of obtaining the consent, and there is
no reason to believe that the deterrent effect on police conduct is any greater in
this context than in the case of simple coercion.

19

It bears repeating that this claim only involves Tukes's consent to a search; this
is not a case where Tukes complains of a confession obtained by overbearing
police officers. Cf. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 1243 n.
12, 51 L.Ed.2d 424 (1977) (incriminating statements suppressed); 430 U.S. at
414, 97 S.Ct. at 1247 (Stone v. Powell issue not raised before Supreme Court)
(Powell, J., concurring); DeAngelo v. Wainwright, 781 F.2d 1516, 1518-19
(11th Cir.) ("this circuit specifically has refused to extend Stone beyond the
fourth amendment context"), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93
L.Ed.2d 392 (1986); Jarrell v. Balkcom, 735 F.2d 1242, 1251-53 (11th
Cir.1984) (confessions obtained in violation of Miranda not barred from
consideration in federal collateral proceedings by Stone v. Powell doctrine),
cert. denied, 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985).

20

Our decision follows the precedent of this circuit in applying Stone v. Powell.
In Smith v. Wainwright, the petitioner alleged that following his arrest, while
concededly in custody, he was interrogated by the police after he had been
informed of his rights and had invoked his right to counsel. He granted consent
to the police to search his truck. In federal habeas corpus, he claimed that the
fruits of the search should have been suppressed because his consent was

elicited after he invoked his right to counsel. The Eleventh Circuit's predecessor
court, noting that the petitioner's "conviction [was] not the result of selfincriminating statements made to police, but the result of physical evidence
seized from his truck[,]" stated that a "consent to search is not a selfincriminating statement; '[i]t is not in itself evidence of a testimonial or
communicative nature.' " Smith v. Wainwright, 581 F.2d 1149, 1152 (5th
Cir.1978) (quoting United States v. Lemon, 550 F.2d 467, 472 (9th Cir.1977)).
The court concluded that:
21

[t]he failure of the police to halt questioning once Smith mentioned his
attorney, then is relevant only with regard to the Fourth Amendment issue of
whether Smith's consent to search was voluntarily given. Under Schneckloth v.
Bustamonte, the failure to cease questioning would be a factor to be considered
in "the totality of all [of] the circumstances." The Florida courts considered
Smith's request for an attorney in light of the Schneckloth standard.
Reconsideration by this court is precisely what Stone forbids.

22

581 F.2d at 1152 (citations omitted; interpolation in original).

23

Accordingly, we conclude that the Stone v. Powell bar applies to Tukes's

federal habeas corpus claim premised on the fruits of a search conducted under
consent elicited after interrogation should have ceased on account of the
accused's request for counsel.

Full and Fair Hearing and Consideration in the State Courts

24
25

Although the Stone v. Powell bar applies to these claims because of their
relation to the fourth amendment (as discussed above), the bar is not honored in
federal court unless the state courts considered the claims fully and fairly. Stone
v. Powell, 428 U.S. at 489, 96 S.Ct. at 3050; Agee v. White, 809 F.2d at 1490;
Morgan v. Estelle, 588 F.2d at 940-43; Caver v. Alabama, 577 F.2d 1188,
1191-93 (5th Cir.1978); Hedden v. Wainwright, 558 F.2d at 786; cf. O'Berry v.
Wainwright, 546 F.2d 1204, 1209-14 (5th Cir.), cert. denied, 433 U.S. 911, 97
S.Ct. 2981, 53 L.Ed.2d 1096 (1977).

26

For a claim to be fully and fairly considered by the state courts,where there are
facts in dispute, full and fair consideration requires consideration by the factfinding court, and at least the availability of meaningful appellate review by a
higher state court. Where, however, the facts are undisputed, and there is
nothing to be served by ordering a new evidentiary hearing, the full and fair
consideration requirement is satisfied where the state appellate court, presented

with an undisputed factual record, gives full consideration to defendant's Fourth

Amendment claims.
27

Morgan v. Estelle, 588 F.2d at 941 (quoting O'Berry v. Wainwright, 546 F.2d
at 1213) (emphasis omitted).

28

The state trial court gave Tukes a full and fair evidentiary hearing relating both
to his coerced consent and invocation of counsel claims. The trial court,
however, while finding that his consent was given freely and voluntarily, made
no explicit findings as to whether Tukes was in custody at the time he gave his
consent, nor did the court provide a finding on whether Tukes had made a
request for counsel that should have been honored by the interrogating officer.
The state trial court also failed to make a factual finding as to whether
Parmenter's deposition or trial testimony should be believed.

29

The trial court's failure to make explicit findings on matters essential to the
fourth amendment issue, combined with the fact that the state appellate court
issued only a summary affirmance, precludes a conclusion in this case that the
state provided the meaningful appellate review necessary to erect a Stone v.
Powell bar to our review of the claim. See O'Berry at 1213; Morgan at 941.6

30

This conclusion follows logically from this circuit's decision in Agee v. White,
809 F.2d 1487 (11th Cir.1987). In that case the court held that where the state
appellate court explicitly addresses only one of petitioner's two fourth
amendment claims, Stone v. Powell does not bar federal collateral review of the
unaddressed fourth amendment claim because it is deemed not to have been
fully litigated or considered. Id. at 1490 (state court of appeal "ignored" fourth
amendment claim). A fortiori, where the trial court's findings which are
essential to the disposition of the fourth amendment claim are unclear and the
state appellate court writes no opinion, we deem the petitioner's fourth
amendment claim not to have been fully considered within the meaning of
Stone v. Powell. Accordingly, we turn to the merits of Tukes's claim that the
evidence seized by the police was obtained in violation of his constitutional
rights.7

31

We emphasize that state courts are not required to issue lengthy opinions
discoursing on the application of federal constitutional law, nor are they
required to pen full opinions in place of summary dispositions. Further, we
presume that the issues raised by Tukes in fact were given the careful,
judicious, and studied attention of the Florida State Court of Appeal.
Nevertheless, for purposes of the Stone v. Powell bar, where the trial court

failed to make clear findings on essential issues, such a summary affirmance is

insufficient to deny the petitioner consideration of the merits of his
constitutional claim on federal habeas corpus review.
THE STATIONHOUSE INTERROGATION
Invocation of Right to Counsel
32

In reliance on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d
378 (1981), Tukes first argues that the interrogation resulting in his consenting
to the search of his home was invalid because it violated his right to have all
questioning cease once he requested an attorney. Tukes contends that the
statement he made at his home before he left with the police officers ("I am
going to have to get lawyers.") constituted a request for counsel that should
have been honored by the police.8 The magistrate rejected that argument. The
district court adopted the magistrate's recommendation. We also find Tukes's
argument without merit as he was not in custody at the time he gave consent to
the search.

33

Once a prisoner requests the assistance of counsel all custodial interrogation

must cease until counsel is provided. Edwards v. Arizona, 451 U.S. at 485-86,
101 S.Ct. at 1885-86; cf. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682,
64 L.Ed.2d 297 (1980) (interrogation defined); cf. Brewer v. Williams, 430
U.S. 387, 403-06, 97 S.Ct. 1232, 1241-43, 51 L.Ed.2d 424 (1977) (no waiver of
sixth amendment right in responding to "christian burial speech"). Furthermore,
once a prisoner in custody requests counsel, he may not be interrogated about
additional offenses, even if the interrogator does not have actual notice of the
prisoner's prior invocation of his right to counsel. Arizona v. Roberson, 486
U.S. 675, 108 S.Ct. 2093, 2100-01, 100 L.Ed.2d 704 (1988); cf. Illinois v.
Perkins, --- U.S. ----, ---- n. **, 110 S.Ct. 2394, 2399 n. **, 110 L.Ed.2d 243
(1990) (Brennan, J., concurring) (no invocation of right to counsel).

34

The requirement that the prisoner's invocation of the right to counsel cause the
cessation of questioning stems from the nature of custody. Where the prisoner
is not in custody, the Edwards and Roberson concerns are not triggered because
the non-custodial defendant is free to refuse to answer police questions, free to
leave the police station and go home, and free to seek out and consult a lawyer.
Once a suspect is arrested and placed in custody, no longer can he leave the
coercive environment engendered by police interrogation. Moreover, the
prisoner's ability to obtain counsel is significantly restricted once he is in
custody. On the other hand, when the suspect is not subjected to custodial
interrogation, the danger of coercion is lessened because the suspect is free to

quit the coercive environment.

35

Whether a person is in custody is measured by "how a reasonable man in the

suspect's position would have understood his situation." Berkemer v. McCarty,
468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). Unless a
reasonable person would have understood that his freedom of action was
curtailed such that he was effectively "in custody," the suspect should not suffer
the coercion associated with being under arrest. Cf. Oregon v. Mathiason, 429
U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam) (coercive
environment of stationhouse interrogation alone does not trigger Miranda );
Innis, 446 U.S. at 299, 100 S.Ct. at 1688-89. In this case, Tukes was not in
custody at the time he gave his consent to the search.9 He voluntarily
accompanied the police to the stationhouse, and voluntarily remained there. At
the time he consented to the search of his house, his freedom of action had not
been restricted: he was free to leave, and no reasonable person would have felt
otherwise.10 Therefore, because Tukes was not in custody, he may not obtain
relief under Edwards.11 Finding that Tukes was not in custody, we need not
reach the question of whether his prior equivocal invocation of counsel at his
home would have been sufficient to cut off questioning had Tukes been placed
in custody.

Involuntary Consent
36

Tukes's second argument is that the consent was "coerced and involuntary in
that Tukes did not understand his true position as sole suspect, did not have
knowledge and understanding of constitutional rights when he signed the
form." Appellant's pro se brief at 13. In Schneckloth, the Court stated that
although consent must not be coerced, there is no requirement that consent be
an intentional relinquishment of a known right or privilege, as is the case with
waiver of certain constitutional rights under Johnson v. Zerbst, 304 U.S. 458, 58
S.Ct. 1019, 82 L.Ed. 1461 (1938) and its progeny. Schneckloth, 412 U.S. at
243-45, 93 S.Ct. at 2056-57. A court determines the voluntariness of consent by
"analyzing all the circumstances of an individual consent ..., [and by] careful
sifting of the unique facts and circumstances of each case...."12 412 U.S. at 233,
93 S.Ct. at 2050.

37

We find Schneckloth v. Bustamonte an instructive starting point. In

Schneckloth, the Court held that a suspect need not know of his right to
withhold consent in order for the consent to be valid. 412 U.S. at 248-49, 93
S.Ct. at 2059. Similarly, we reject Tukes's contention that police are under an
obligation to tell a suspect that he is the sole suspect when they seek consent
for a search. To require that a suspect be fully aware of the investigator's view

of the degree of the suspect's involvement in the offense would contradict

Schneckloth.
38

Nevertheless, in considering the voluntariness of consent, the Court noted that

the "traditional definition of voluntariness ... has always taken into account
evidence of minimal schooling, low intelligence, and the lack of any effective
warnings to a person of his rights; and the voluntariness of any statements taken
under those conditions has been carefully scrutinized to determine whether it
was in fact voluntarily given." 412 U.S. at 248, 93 S.Ct. at 2058 (footnote
omitted).13

39

In United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 1879, 64
L.Ed.2d 497 (1980) (concurred in by five Justices) a twenty-two year old
woman who had not finished high school was temporarily detained by two
male police officers at an airport because they suspected her of carrying drugs.
Eventually she disrobed in the presence of a female officer and drugs were
discovered. The Court, in considering whether her consent to the body search
was voluntary, looked to her knowledge of a right to refuse as an "especially
significant" indicia of whether the consent was knowing and voluntary. The
Court also considered the suspect's age and eleventh grade education,
considering those factors as sufficient to show that the suspect was "plainly
capable of a knowing consent." 446 U.S. at 558, 100 S.Ct. at 1879.

40

In deciding whether a suspect voluntarily consented to a search the court should

consider:

41
voluntariness
of the defendant's custodial status, the presence of coercive police
procedure, the extent and level of the defendant's cooperation with police, the
defendant's awareness of his right to refuse to consent to the search, the defendant's
education and intelligence, and significantly, the defendant's belief that no
incriminating evidence will be found.
42

United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir.1984) (quoting
United States v. Phillips, 664 F.2d 971, 1023-24 (5th Cir. Unit B Dec. 1981)
(footnotes omitted), reinstated by court sua sponte after vacation for reh'g sub
nom. United States v. Bacca-Beltran, 764 F.2d 747 (11th Cir.1985) (en banc).

43

In applying these factors, we must place the burden on the state to show that
Tukes's consent was voluntary. Schneckloth, 412 U.S. at 222, 93 S.Ct. at 2045,
2059 (placing burden on state in collateral proceedings as to consent).

44

Weighing in favor of concluding that Tukes's consent was voluntary is the

44

Weighing in favor of concluding that Tukes's consent was voluntary is the

following: first, Tukes was not in custody and voluntarily accompanied the
police to the stationhouse. Second, there is no evidence of coercive police
procedure prior to Tukes's consent to the search. Third, Tukes had already
exhibited great willingness to cooperate with the police; indeed, he initially
turned over one gun to the police at his house and consented to a search of his
car and garage. This pattern of accommodation suggests, although it does not
compel, the conclusion that Tukes's subsequent consent was the uncoerced
continuation of his baseline approach of dealing with the police.14

45

On the other hand, several other factors weigh against the conclusion that
Tukes's consent was voluntary. First, Tukes's education and intelligence were
low, and the police had an inkling of Tukes's limitations when he informed
them that he could not read or write. Second, the police did not inform Tukes of
his right to refuse consent.

46

Although this case is a close one, we conclude, based on the totality of the
circumstances, that Tukes's consent was voluntary and knowing. There was,
therefore, no constitutional error in admitting the fruits of the search against
him.

ALLEGED EQUAL PROTECTION VIOLATION IN JURY SELECTION

47
48

Tukes contends that the prosecutor selected the trial jury in an intentionally
discriminatory manner in violation of the fourteenth amendment as interpreted
by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
The district court adopted the magistrate's report, which after reviewing the
facts, concluded that Tukes had failed to establish a prima facie case under
Batson. Batson provides that a prosecutor must rebut charges of racial
discrimination in the exercise of peremptory strikes if the defendant can
establish a prima facie case. To make out a prima facie case under Batson, the
defendant must show that he or she is a member of a cognizable racial group,
that the prosecutor has exercised peremptory challenges to remove from the
venire members of the defendant's race, and that "these facts and any other
relevant circumstances raise an inference that the prosecutor used that practice
to exclude the veniremen from the petit jury on account of their race." 476 U.S.
at 96, 106 S.Ct. at 1723.

49

Tukes's equal protection challenge fails because the other facts and
circumstances demonstrate that the prosecutor was not exercising his
peremptory strikes against veniremen on the basis of race. In this case, there
were few blacks on the entire venire. The state exercised only one peremptory

strike against a black; two others were excused for cause. The prosecutor
cooperated with defense counsel in attempting to bring more blacks onto the
petit jury by agreeing to take black members of the venire out of order ahead of
white venirepersons. Further the prosecutor agreed not to use a peremptory
strike against any additional black juror brought in for voir dire. In light of that
fact, we hold that Tukes failed to establish a prima facie case under Batson. We
therefore affirm the district court.
CONCLUSION
50

As we conclude that none of Tukes's claims merit relief, we AFFIRM the

decision of the district court denying relief.

51

RONEY, Senior Circuit Judge, specially concurring:

52

I concur in the result reached by the Court and all of the opinion, except that
portion which holds that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49
L.Ed.2d 1067 (1976), does not apply to any case where the state appellate court
has not written an opinion on the Fourth Amendment issue and the state trial
court did not set forth specific findings. I doubt if this is a very sound basis for
deciding whether the defendant has received a full and fair hearing in the state
appellate court. We affirm too many cases without opinion to suggest that a
defendant has not received a full and fair hearing of every point asserted on
appeal.

53

If the absence of an opinion makes it uncertain whether the appellate court has
considered a particular argument, there being some other avenue to the result,
then Stone v. Powell would not foreclose federal consideration if the issue turns
the case in federal court. But if the defendant had a full opportunity to present
the point, did present it, and the point had to be considered in order to reach the
result obtained in the state court, then there should be a presumption that the
court did in fact consider the argument and purposely rejected it after full
consideration, regardless of the specific findings of the trial court.

54

As the Court points out, the state trial court gave Tukes a full and fair
evidentiary hearing relating both to his coerced consent and invocation of
counsel claims. The record reveals that the necessary material historical facts
were developed at the suppression hearing, and, therefore, meaningful
appellate review could have provided for the legal issues to be fully briefed and
argued with the luxury of time for contemplation and research by counsel. In
fact this Court has reviewed this issue on the same record that was before the

state appellate court. Tukes raised the same Fourth Amendment claims before
the state court of appeal as he does before this Court. This meets the holding in
Stone v. Powell:
In sum, we conclude that where the State has provided an opportunity for full and
55
fair litigation of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial. In this context the
contribution of the exclusionary rule, if any, to the effectuation of the Fourth
Amendment is minimal and the substantial societal costs of application of the rule
persist with special force. (footnotes omitted).
56

428 U.S. at 494-95, 96 S.Ct. at 3052-53.

57

As the federal courts deal with their caseloads by foregoing opinions reciting
every issue argued by the parties, it is counterproductive to burden ourselves
with the consideration of Fourth Amendment claims that were in fact fully and
fairly considered by a state court and necessarily rejected by the denial of
appellate relief. The state courts are every bit as overloaded as the federal
courts, and we should give full recognition to their practices, just as we do to
our own.

58

Since the Fourth Amendment argument is rejected on the merits, whether it is

barred from consideration under Stone v. Powell does not control the outcome,
just as in Agee v. White, 809 F.2d 1487 (11th Cir.1987). But the direction here
will impose upon our already overburdened district courts the time-consuming
consideration of Fourth Amendment claims which have already received full
and fair consideration in the state courts, trial and appellate, a task that Stone v.
Powell was intended to eliminate.

See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit

**

Honorable Ruggero J. Aldisert, Senior U.S. Circuit Judge for the Third Circuit,
sitting by designation

Officer Barraga's name is variously spelled throughout the pleadings and record
of this case. We adopt the spelling used by the court reporter in the suppression
hearing in state court

Although the record does not disclose the total amount of time Tukes was at the
police station before he gave consent to the search, he had been interrogated no

longer than two hours when he initialed the consent form

3

Tukes brought no collateral state proceeding, and none was necessary as Tukes
elected to bring in federal habeas corpus only those claims he had presented to
the state courts on direct appeal

The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former
Fifth Circuit rendered prior to October 1, 1981

The Court noted that an alternative rationale for the exclusion of evidence
obtained in violation of any constitutional right, including that secured by the
fourth amendment, is the preservation of the "integrity of the judicial process."
428 U.S. at 485, 96 S.Ct. at 3048. The Court stated, however, that the "force of
this justification becomes minimal where federal habeas corpus relief is sought
by a prisoner who previously has been afforded the opportunity for full and fair
consideration of his search-and-seizure claim at trial and on direct review." Id

We appreciate Judge Roney's observation that a summary disposition can meet

the requirements of Stone. Infra at 518. Had the trial court's findings been clear
in this case, then a summary affirmance might have constituted "meaningful
appellate review" as required by O'Berry and Stone. O'Berry at 1213. Cf.
Tackno v. Blackburn, 571 F.2d 1383 (5th Cir.1978) (per curiam) (affirmance
by summary disposition can satisfy Stone v. Powell ). There is no indication in
Tackno that the trial court's findings were not clear

Where the historical facts were adequately developed in the state trial court,
there is no need to remand to the district court to find facts. Furthermore, the
factual findings made by the state trial court are entitled to a presumption of
correctness under 28 U.S.C. Sec. 2254(d). As we did in Agee, we will address
the petitioner's claims on the merits as we have determined that Stone v. Powell
does not bar federal collateral review

See Towne v. Dugger, 899 F.2d 1104 (11th Cir.1990) (collecting equivocal
invocation of counsel cases)

Tukes's reliance on People v. Boyer, 48 Cal.3d 247, 768 P.2d 610, 256
Cal.Rptr. 96 (1989), is misplaced as in that case the suspect was detained when
attempting to flee, and once in the stationhouse police evaded the suspect's
inquiry as to whether he was under arrest

10

We note that at the time Tukes consented to the search, he had been at the
police station no longer than two hours, and, at that time, had not requested to
leave. We also note that he had been read his Miranda rights at the time he

consented to the search. Although the reading of Miranda rights may be

considered as some evidence by a reasonable person that he is in custody, in
this case, we agree with the magistrate and the district court that Tukes was not
in custody and could not reasonably have believed he was
11

12

We feel constrained to address an argument raised by the state at oral argument

regarding the result of giving Miranda warnings. At the stationhouse Tukes was
read a waiver of rights form, described as a "Standard Miranda Warning Form."
The state contends that because Tukes was not in custody when he was read his
Miranda warnings, had he invoked his right to counsel the police would have
been free to ignore that invocation. The state's position is without merit. If the
state were free to tell a suspect that he had the right to an appointed lawyer, but
could, while continuing to interrogate, refuse to provide the lawyer on the
ground that the suspect was not actually in custody, the suspect would be led to
believe that no request for counsel would be honored. The coercive effect of
continued interrogation would thus be greatly increased because the suspect
would believe that the police "promises" to provide the suspect's constitutional
rights were untrustworthy, and that the police would continue to violate those
rights as they wished, regardless of assurances to the contrary
The district court adopted the magistrate's report, which concluded that Tukes's
voluntariness claim was barred by Stone v. Powell. As a result, the district
court did not rule or make findings on the voluntariness of Tukes's consent.
Where a complete record, fully developed in state court proceedings, is
sufficient for proper examination of the claims on federal collateral review,
there is no need for an evidentiary hearing in federal court. Townsend v. Sain,
372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Douglas v. Wainwright, 714
F.2d 1532, 1554 (11th Cir.), cert. granted and opinion vacated for
reconsideration, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874 (1983), panel
opinion reinstated on remand, 739 F.2d 531 (11th Cir.1984), cert. denied, 469
U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985); Guice v. Fortenberry, 661
F.2d 496, 500 (5th Cir.1981) (en banc). Conversely, where the material facts
were not developed, the district court should hold an evidentiary hearing
As the voluntariness issue has been argued adequately on appeal based on the
facts found by the trial court in the interest of judicial efficiency we adjudicate
the claim without remanding. See Agee, 809 F.2d at 1490-95.

13

In discussing voluntariness, the Schneckloth Court explicitly stated that its

voluntariness inquiry in the context of fourth amendment consent took into
account "evidence of minimal schooling, low intelligence and the lack of any
effective warnings to a person of his rights...." 412 U.S. at 247, 93 S.Ct. at
2058. The Court carefully distinguished between the standard to be applied

where full waiver is required and that to be applied to fourth amendment

consent. In Colorado v. Connelly, the Court held that "coercive police activity
is a necessary predicate to the finding that a confession is not 'voluntary' within
the meaning of the Due Process Clause of the Fourteenth Amendment." 479
U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). Although that
statement may be read to apply the same necessary predicate in the fourth
amendment consent setting, given the distinction in Schneckloth, we do not
understand Colorado v. Connelly to overturn existing fourth amendment
consent jurisprudence; accordingly, we continue to adhere to the interpretation
of voluntary consent in the fourth amendment context set forth in the
precedents discussed in the text infra
14

Whether or not Tukes believed that incriminating evidence would be found is

irrelevant in this case. That factor applies in a case where the suspect freely
consents to the search because he believes he has nothing to hide, and is
derived from United States v. Hall, 565 F.2d 917 (5th Cir.1978). In Hall, a
suspect, believing he had "nothing to hide," consented to a search of his car
trunk which contained a sawed-off shotgun. The suspect's statement when he
gave consent that no incriminating evidence would be found was "a factor
pointing to the validity of his consent." 565 F.2d at 920. In this case, there is no
evidence either way as to whether or not Tukes believed incriminating evidence
would be discovered; accordingly, we do not put this factor on the scales